IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America

v. Case no. 2:10-mj-364

Carlos W. Cook

ORDER

This matter is before the court for consideration of the

report and recommendation filed on October 27, 2010, regarding the

motion of the United States to exclude any period of time

attributable to the incompetency of the defendant from the thirtyday period required for the return of an indictment pursuant to the

Speedy Trial Act, 18 U.S.C. §3161(b). No objections to the report

and recommendation have been filed by the parties.

This court finds that the date of the defendant’s arrest, June

9, 2010, should be excluded pursuant to Fed.R.Crim.P. 45(a)(1)(A),

which excludes the “day of the event that triggers the period” from

computation. The court also agrees with the recommendation of the

magistrate judge that it is appropriate to find that the period

from June 10, 2010, the date of defendant’s initial appearance and

the making of a motion by defendant for a competency examination,

to August 18, 2010, the date of this court’s order finding that the

defendant was incompetent and referring him to the custody of the

Bureau of Prisons for a determination as to whether he could be

restored to competency with treatment, is excludable. This court

agrees that this period is excludable delay “resulting from any

proceeding, including any examinations, to determine the mental

competency or physical capacity of the defendant” and “resulting

from any pretrial motion, from the filing of the motion through the

conclusion of the hearing on, or other prompt disposition of, such

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motion [.]” See 18 U.S.C. §3161(h)(1)(A) and (D).

The government requests an order decreeing that all time from

August 18, 2010, to such time, if ever, that the defendant becomes

mentally competent should be excluded in computing the time within

which an information or indictment must be filed. The end of such

a period would be determined by the date of an order entered after

a hearing held pursuant to 18 U.S.C. §4241(e), finding that the

defendant was then competent and ordering his immediate discharge

from the facility in which he was hospitalized.

The magistrate judge concluded that all time during which the

defendant is incompetent would ordinarily not be counted pursuant

to 18 U.S.C. §3161(h)(4), which excludes any “period of delay

resulting from the fact that the defendant is mentally incompetent

or physically unable to stand trial.” However, the magistrate

judge also noted 18 U.S.C. §3161(h)(1)(F), which excludes delay

resulting from the transportation of the defendant to and from

places of examination or hospitalization, but further provides that

any delay in excess of ten days, as calculated between an order of

removal or an order directing the defendant’s transportation to a

facility and the defendant’s arrival at the facility, is presumed

to be unreasonable.

In cases where competency evaluations were ordered, the Sixth

Circuit has given effect to the transportation provision in

§3161(h)(1)(F) and counted any unreasonable period of delay in

excess of ten days toward the speedy trial clock even though the

entire period would otherwise have been excludable time under 18

U.S.C. §3161(h)(1)(A). See United States v. Turner, 602 F.3d 778,

782-786 (6th Cir. 2009); United States v. Tinklenberg, 579 F.3d

589, 595-597 (6th Cir. 2009); cf. Bloate v. United States, U.S.

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 , 130 S.Ct. 1345, 1353 n. 9 (2010)(rejecting an interpretation

of the Speedy Trial Act that would render a provision of the Act a

nullity). Although the Sixth Circuit has not specifically

addressed the issue of whether the transportation provision would

apply where time is otherwise excluded under the competency

provision in §3161(h)(4), the magistrate judge concluded that the

reasoning in Turner and Tinklenberg would also apply to that

situation. However, those decisions may be distinguishable in a

case where the defendant has actually been found to be incompetent,

since no trial or other proceedings may be had in any event as long

as the defendant is incompetent, and therefore the speedy

indictment/trial concerns are not the same.

However, the court concludes that it is not necessary at this

time to decide the issue of whether §3161(h)(1)(F) applies despite

the exclusion provided in 18 U.S.C. §3161(h)(4), since under the

calculations recommended by the magistrate judge, ample time

remains in which the government can secure an indictment in the

event that defendant is later found by the court to be competent. 

Since no order of removal or transportation was entered in this

case, the magistrate judge, referring to the suggestion in Turner,

602 F.3d at 785, concluded that the transportation time under

§3161(h)(1)(F) began to run on October 6, 2010, the date defendant

began his transit to the designated facility, and concluded on

October 19, 2010, the date of his arrival at the facility, a period

of fourteen days. Since the first day is not counted pursuant to

Rule 45(a)(1)(A), this results in a period of thirteen days. 

Although the magistrate judge recommended a finding that three of

those days are presumptively unreasonable, the magistrate judge

gave no recommendation as to whether those days should count

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against the speedy indictment clock, noting that the government

should be given the opportunity to present evidence to rebut the

presumption of unreasonableness before a finding is made on the

issue of whether the three days are excludable time.

The court agrees with the magistrate judge’s calculations

concerning the defendant’s time in transit. As indicated above,

the court makes no ruling on whether §3161(h)(1)(F) applies, but,

assuming arguendo that it does apply, the court agrees with the

magistrate judge’s recommendations that only three days of transit

time would be presumptively unreasonable, and that no ruling on

whether the three days count on the speedy indictment clock should

be made until the government has had the opportunity to present

evidence on the reasonableness of the delay. If the government

later presents evidence and shows that the three-day delay was

reasonable, then the full thirty-day period remains in which to

secure an indictment. Even if the government fails to show that

the three-day delay was reasonable, it would still have twentyseven days to obtain an indictment after the entry of an order

declaring defendant to be competent.

In accordance with the foregoing, the court adopts in part the

report and recommendation (Doc. No. 20). The government’s motion

(Doc. No. 18) is granted in part. The court holds that from the

date of defendant’s arrest through August 18, 2010, no days have

expired towards the thirty-day period under §3161(b) for securing

an indictment. The court further holds that the period from August

18, 2010, to such date, if ever, that defendant is found by court

order to be mentally competent, is excludable time under

§3161(h)(4), with the caveat that the court will defer ruling on

the issues of whether §3161(h)(1)(F) applies and whether the three

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presumably unreasonable days of transit, specifically, October 17-

19, 2010, should or should not be excluded, and will permit the

government to present evidence as to whether this delay was

justifiable before making such a ruling.

Date: November 17, 2010 s/James L. Graham 

 James L. Graham

 United States District Judge 

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